Rozaini Mohd Rosli's Blog

VOTE for Noorfadilla Binit Ahmad Saikin v Chayed Bin Basirun & Others

January 25, 2012

Malaysia • High Court of Malaya at Shah Alam in the State of Selangor Darul Ehsan, 2011-07-12

Noorfadilla Binit Ahmad Saikin v Chayed Bin Basirun & Others – GAVEL

THE WITHDRAWAL OF A TEMPORARY JOB OFFER TO A WOMAN ON THE BASIS THAT SHE WAS PREGNANT IS A FORM OF GENDER DISCRIMINATION PROHIBITED BY THE MALAYSIAN CONSTITUTION. MALAYSIAN COURTS ARE OBLIGED TO INTERPRET THE RELEVANT CONSTITUTIONAL TERM “EQUALITY” IN LIGHT OF THE PROVISIONS OF THE CEDAW.

Average: 5.0 / Votes: 161

Due to a shortage of teachers in Malaysia, the Ministry of Education had decided that untrained teachers could be employed on a temporary basis, paid monthly and with the right to resign at any time. Noorfadilla Binit Ahmad Saikin, the plaintiff, applied and had an interview which covered issues pertaining to her general knowledge, problem solving skills and residential address. At no time was she asked whether she was pregnant.

She was subsequently offered a position and attended at a group briefing meeting wherein she asked to report for duty immediately and reminded of her obligation to give one month’s notice for resignation. An official then asked the group whether there was anyone pregnant. The plaintiff, who was at the time three months pregnant, and two other women responded in the affirmative. The official then took back the letter offering the Plaintiff work. The Plaintiff’s husband wrote a number of emails seeking an explanation. Finally the Ministry replied stated that she could not be employed because among other things i) the period between the time of delivery to full health is too long (it estimated 2 months); ii) a pregnant woman frequently may not be able to attend to her job due to various health reasons and iii) when she gives birth she will have to be replaced by a new teacher who will require further briefings.

The Court examined whether the Ministry could terminate the offer of employment on the grounds of her pregnancy. It held that the Convention on the Elimination of Discrimination against Women (CEDAW), had the force of law and was binding on member states, including Malaysia. Therefore Malaysia was obliged to have regard to its CEDAW obligations in defining and clarifying equality and gender discrimination under the relevant provision of its Constitution. Citing jurisprudence from various countries, the Court held that discrimination on the basis of pregnancy is a form of gender discrimination as biologically only women have the capacity to become pregnant. The withdrawal of the offer of employment was unconstitutional, unlawful and void.

In a decision against the Education Ministry and the government, Shah Alam High Court judge Zaleha Yusof has ruled that the United Nations’ Convention on the Elimination of all Forms of Discrimination against Women (Cedaw) – to which Malaysia became a signatory in 1995 – is binding.

“The judge said that Cedaw had the force of law and is binding in Malaysia,” said lawyer Honey Tan.

Norfadilla Ahmad Saikin, 29, took the government to court to seek a declaration that pregnancy cannot be used as an excuse not to employ a person as a untrained relief teacher (GSTT) and the revocation of the memo on her placement to be declared illegal and unconstitutional.

She was given a memo for the month-to-month teaching contract in January 2009, but this was revoked almost immediately when the Hulu Langat district education officers found out that she was pregnant.

Named as respondents were Hulu Langat district education officers Chayed Basirun and Ismail Musa, their department head Zahri Aziz, the Education Ministry director-general, the education minister and the government.

According to Tan (on right in picture below), who acted for Nurfadilla, the court recognised that the government had to commit to Cedaw, and to adopt the article regarding discrimination against women under its Article 11.

Article 11 of Cedaw requires countries to protect women’s rights to work, to ensure that women have the same training and employment opportunities as men, that women receive equal pay for work of equal value, that women have access to the same benefits, compensatory schemes, and allowances as men, especially in relation to retirement and incapacity to work.

The article further requires that countries prohibit discrimination in the workplace on the basis of marriage, pregnancy and maternity leave, introduce paid maternity leave without loss of benefits or career opportunities, and encourage the provision of supporting social services to allow parents to combine family obligations with work responsibilities.

Nurfadilla also argued the case under Article 8(2), which pertains to discrimination on the grounds of ‘religion, race, descent, gender or place of birth… in the appointment to any office or employment under a public authority’.

The court ruled for damages to be paid to Nurfadilla, in a sum that will be decided by the registrar at a later date.

This is the first time a civil servant has brought the government to court over gender discrimination in the workplace in this landmark case.

Lawyer Edmund Bon (left, in picture above), who also acted for Nurfadilla, said it was extremely rare for the court to award damages to the plaintiff over the pure breach of the Federal Constitution, where the government has unfairly discriminated against Nurfadilla because of her pregnancy.

Malaysia has to abide by international conventions

Tan also said that this should set a precedence for current international treaties and conventions to which Malaysia is a signatory, that they are legally binding and should be observed as law.

“This means that international instruments such as the Convention of the Rights of a Child and Convention on the Rights of Persons with Disabilities have to be observed by the government to full effect,” she told reporters outside the court.

Representing Nurfadilla this morning was her husband Mohd Izwan Zakaria, who was visibly elated after receiving the decision from the judge’s chambers. Nurfadilla is still on confinement after having given birth to her third child last month.

“Praise Allah for all the hard work by the our lawyers, as well as the Selangor government and the Human Rights Commission (Suhakam) for supporting us through this.

“I am just absolutely speechless and I hope that there are no more cases like this, whether in the public or the private sector,” Izwan said.

Clearly relieved, he said that it was justice at long last, after his wife having exhausted every single complaint avenue with her employers within the ministry and the government.

Lawyers Jesrina Grewal and Siti Kasim held the watching brief for Suhakam and the Bar Council respectively.